A Jesuit's Guide to Open Standards


One of the hottest topics in computing today is that of open standards. That's largely being driven by the interest in them from national governments – particularly in Europe. As a result, what was once a dry-as-dust subject has suddenly become crucially important in terms of winning large government contracts.

The idea behind truly open standards is to create a level playing field so that everyone can compete on an equal and fair basis. The benefits are obvious: it ensures a true Darwinian selection process is possible, leading to lower costs and more rapid innovation. Moreover, it's attractive to those handing out major government contracts since it avoids lock-in: if a standard is truly open, anyone can support it without needing to ask permission or pay licensing fees.

Since the move to open standards is pretty hard to argue against – not least because it would be impolitic to argue for less competition and more uneven playing fields – those who stand to lose from this trend have had to resort to Jesuitical casuistry – as here, which introduces the concept of “balance” to open standards:

The balance issue I speak of stems from the idea that many in the “open standards” discussion have placed an over-emphasis on implementers of standards – particularly those who want to implement under licensing that conflicts with patent terms. Essentially the simplified argument is that because those licensing models are not compatible with patent terms, then there should be no IP protections in the standards process so those implementers can implement. That is not balance – that is imbalance.

The logic here seems to be that there would be an “imbalance” in open standards if it were insisted that patents were excluded – because balance obviously means having standards with and without patents. While it's true that creates a “balance”, it's a purely linguistic one; the fact is that patent-encumbered standards requiring licensing fees cannot, by definition, be open. That's because they do not create level playing fields: there is always one or more players who occupy a privileged position. So the balance is entirely specious.

What's particularly curious is that the same posting – from Microsoft's Jason Matusow – actually includes an extremely good articulation of why it is in the interests of companies to take part in the creation of truly open standards – that is, without trying to assert patents:

The vast majority of ICT standards are created based upon some original contribution from a commercial entity. These submissions are done in order to lay the foundation for a standard, and that decision to contribute is based on the idea of getting some return on the contribution. The return is NOT necessarily about royalties. The return may be that a product that includes the standard as part of it will do better in the marketplace because of the broader adoption of the baseline technology as a standard. The return might be in improved interoperability of a given product or service due to the adoption of that standard. There are competitive reasons for contributions – the hope may be to displace a competitor who is using a non-standardized solution.

This is spot-on, and completely undermines the later statement that:

As a society, we want contributions to standards to continue. If you make the standards environment hostile to contributors…they will contribute less.

They won't, for the reasons Matusow made before.

Two final points...about his “two final points”:

There is no evidence to date that a GPL product can’t implement a standard with IP restrictions. There are many, many RAND standards implemented in GPL-licensed products today.

If Matusow means products that include both GPL'd code and RAND (reasonable and non-discriminatory) standards, that's certainly true, but beside the point, which is that you can't include RAND standards *in* GPL'd code. As the guide to the GNU GPLv3 explains:

Whenever someone conveys software covered by GPLv3 that they've written or modified, they must provide every recipient with any patent licenses necessary to exercise the rights that the GPL gives them.

That means *without* payment, not just for a reasonable payment, which may be small, but is still impossible for software that can be freely distributed.

And as for the second point:

I am all for the idea of “open standards,” but to me it is all about process and participation.

That is rather rich in the light of the OOXML standardisation “process” at the ISO. As I wrote elsewhere recently, after listing a number of well-documented examples of Microsoft's “participation” there:

Taken individually, these dubious actions might be dismissed by Microsoft as “minor lapses”, “misunderstandings” or actions of an atypical “rogue” manager – as was done in Sweden, where an offer was made to support partners financially if they attended the key meeting of the national body and voted in favour of OOXML. But taken together they suggest a consistent philosophy of being prepared to use whatever means necessary in order to gain the required number of votes.

Against that background of a standardisation process being bent to breaking point, complaints about the *balance* of open standards ring rather hollow.

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